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Workplace squabbles demand action

By Sarah Townsend, Senior Solicitor

First published in The Press 29 April 2009

Issues of serious incompatibility can be enormously disruptive in the workplace and are problematic for employers. They disrupt morale, divide loyalties and affect performance and productivity. 

If your employees are fighting like cat and dog, communicating only through email and constantly barraging you with seemingly petty complaints about each other, you likely have an issue of incompatibility in your workplace.  The situation can be made all the more difficult when the incompatibility is between you and a staff member who reports to you.  It may seem like everything you say is taken the wrong way and any effort to give constructive feedback or issue a reasonable instruction is met with hostility and defiance.

In these circumstances, it may seem that someone clearly has to go – but who? Can this sort of dismissal ever be justified if the only thing an employee is guilty of is not getting on with their colleague?

Although dismissals for serious incompatibility can be justified in some circumstances, employers should first take steps to see if the issue can be resolved. These could include discussions between the parties facilitated by an impartial senior manager, or a mediator from the Department of Labour, to see if the parties involved can come to a workable agreement.   

Another option is to use an external specialist consultant, such as an organisational psychologist, to work with your staff members individually and together to try and get to the bottom of why the incompatibility has occurred and see if there is any prospect of it being overcome. 

Sometimes, it is possible to separate employees who simply do not get along to minimise disharmony in the workplace, but this should only be done with the consent of the employees involved. 

In rare cases, the incompatibility is so severe that the relationship is irreparable and dismissal often seems like the only option. 

Although these types of dismissals can be justified, there are relatively few cases that have been successfully argued.

In NZ Fire Service v Reid (1998), Mr Reid was dismissed as a result of ongoing conflict with his employer and co-workers.   His dismissal on incompatibility grounds was found to be justified as the employment relationship had become “completely dysfunctional” and there was no prospect of the situation improving.  The Fire Service had tried to address the issues, but the process had been completely rejected by Mr Reid.    The Court held that the dismissal was justified because of this ongoing conflict and that such conflict had to be viewed in light of the structured and disciplined emergency service environment in which the grievant worked. But the Court stressed that cases in which dismissal on the grounds of incompatibility would be justified were rare. 

In contrast, in Hayward v Tairawhiti Polytechic, Ms Hayward was dismissed for serious incompatibility with her manager, but the dismissal was found to be unjustified.  Although the Court accepted that there was incompatibility, it said that these issues should have been addressed earlier by the Polytechnic.  Its failure to intervene earlier, together with its approach of addressing the issues only in a disciplinary context led the Court to conclude that Ms Hayward was not substantially responsible for the irreconcilable breakdown in the relationship.

In incompatibility cases, the onus is firmly on the employer to show that it had come to the reasonable conclusion that the relationship was irreconcilable, that this was wholly or primarily attributable to the employee who was dismissed and that a fair process was followed.  If the seriousness of incompatibility was primarily the fault of the employer, for example because the employer was harassing the employee or ignoring complaints made about the issue, then a dismissal will be very difficult to justify. 

If faced with a potential issue of a personality conflict in the workplace, swift action is necessary.  The earlier the issue is addressed, the more likely it is that it can be overcome. Personality conflicts which are left to fester often deteriorate and ultimately result in irreconcilable differences requiring a carefully handled process. 

Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.